International Tribunal for the Law of the Sea | Law of the Sea | PUBLIC INTERNATIONAL LAW

XVI. PUBLIC INTERNATIONAL LAW

N. Law of the Sea

1. International Tribunal for the Law of the Sea (ITLOS)

The International Tribunal for the Law of the Sea (ITLOS) is a specialized judicial body established under the United Nations Convention on the Law of the Sea (UNCLOS). It plays a critical role in the adjudication of disputes and the interpretation and application of the provisions of UNCLOS, which serves as the constitution of the world's oceans.

I. Legal Framework

1. UNCLOS: The primary legal framework that establishes ITLOS is UNCLOS, particularly Annex VI of the convention, which governs the Tribunal's composition, jurisdiction, and functions.
   • UNCLOS was adopted in 1982 and entered into force on November 16, 1994.
   • ITLOS was created to facilitate the peaceful settlement of disputes and ensure the uniform interpretation of the law of the sea.

II. Structure and Composition of ITLOS

1. Composition:

   • ITLOS consists of 21 independent judges who are experts in international law, particularly the law of the sea.
   • Judges serve for nine-year terms and may be re-elected.
   • They are elected by State Parties to UNCLOS through a voting system, considering equitable geographic distribution and representation of various legal systems.
   • No two judges may be nationals of the same state, ensuring diversity and neutrality in the Tribunal.

2. Chambers: ITLOS operates through several specialized chambers, enabling the Tribunal to efficiently handle specific categories of disputes:

   • Seabed Disputes Chamber: Handles disputes related to activities in the International Seabed Area (also known as "the Area"). The Area is beyond national jurisdiction and managed under the common heritage of mankind principle.
   • Chamber of Summary Procedure: Facilitates expedited procedures for urgent cases.
   • Special Chambers: The Tribunal may create ad hoc chambers for specific disputes based on agreements between the disputing parties.

III. Jurisdiction of ITLOS

ITLOS holds jurisdiction over disputes and applications arising under the Law of the Sea Convention and other agreements that confer jurisdiction on the Tribunal. There are several categories of disputes:

1. Contentious Jurisdiction:

   • This refers to ITLOS's power to hear disputes brought by States concerning the interpretation or application of UNCLOS.
   • State Parties may submit disputes regarding issues such as:
     • Maritime boundary delimitation;
     • The breadth of the territorial sea, the contiguous zone, or the continental shelf;
     • The rights and obligations of coastal States;
     • Navigation rights, including the regime of innocent passage and transit passage through international straits;
     • Conservation and utilization of marine living resources, such as fisheries disputes.

2. Advisory Jurisdiction:

   • ITLOS may also provide advisory opinions at the request of entities authorized by UNCLOS, such as the International Seabed Authority (ISA) or any UN body. These opinions are not binding but are influential in clarifying international law.

3. Special Jurisdiction over the International Seabed Area:

   • The Seabed Disputes Chamber handles disputes related to activities in "the Area," which refers to the seabed, ocean floor, and subsoil beyond the limits of national jurisdiction. This area is managed by the International Seabed Authority (ISA), and disputes typically arise from exploration and exploitation of marine mineral resources.
   • The Chamber may hear disputes between:
     • States and the ISA;
     • States and contractors engaging in seabed activities;
     • Contractors and the ISA or other contractors.

4. Prompt Release of Vessels and Crews:

   • ITLOS also has a special function for the prompt release of vessels and crews. When a coastal State detains a foreign vessel for alleged violations of its laws (e.g., fishing violations), the flag State of the vessel can seek prompt release by ITLOS upon the payment of a bond or other financial security.

5. Provisional Measures:

   • ITLOS can prescribe provisional measures to preserve the respective rights of the parties or prevent serious harm to the marine environment pending the final settlement of a dispute. This is an urgent measure similar to an injunction in domestic legal systems.

6. Compulsory Dispute Settlement:

   • One of the hallmarks of UNCLOS is the compulsory dispute settlement mechanism. If parties cannot settle their disputes through negotiation or conciliation, they are obligated to submit their disputes to one of the dispute resolution bodies under UNCLOS:
     • ITLOS,
     • The International Court of Justice (ICJ),
     • Arbitral tribunals constituted under Annex VII of UNCLOS,
     • Special arbitral tribunals under Annex VIII of UNCLOS (for technical matters).
   • Parties to a dispute may choose ITLOS over other forums for resolution.

IV. Key Cases and Jurisprudence

Over the years, ITLOS has built a significant body of jurisprudence in the law of the sea. Some landmark cases include:

1. M/V "Saiga" (No. 2) Case (Saint Vincent and the Grenadines v. Guinea) (1999):

   • This case involved the prompt release of a vessel seized by Guinea for allegedly violating its customs laws. ITLOS held that Guinea had violated the right of freedom of navigation under UNCLOS, and Guinea was ordered to release the vessel and pay compensation.

2. Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore) (2003):

   • Malaysia brought a case against Singapore, claiming that Singapore’s land reclamation activities were causing environmental harm. ITLOS ordered provisional measures to prevent serious harm to the marine environment and urged the parties to consult with one another.

3. Delimitation of the maritime boundary between Ghana and Côte d'Ivoire (2017):

   • ITLOS established the maritime boundary between the two States in the Atlantic Ocean, providing clarity on issues related to overlapping oil concessions and maritime claims.

4. The Arctic Sunrise Case (Netherlands v. Russia) (2014):

   • ITLOS ordered Russia to release a Dutch-flagged vessel seized during a protest against an oil platform in the Arctic. The Tribunal emphasized the right of peaceful protest and the requirement of prompt release of detained vessels.

V. Procedure Before ITLOS

The procedures of ITLOS are governed by its Statute and Rules of the Tribunal. The process typically involves:

1. Filing of a case: A State Party submits a dispute through an application.
2. Written submissions: The parties exchange written memorials and counter-memorials.
3. Oral hearings: Public hearings are held where the parties present their case before the judges.
4. Judgment: ITLOS delivers its judgment, which is final and binding on the parties.

VI. Enforcement of ITLOS Judgments

Judgments rendered by ITLOS are binding and final between the parties to the dispute. If a State fails to comply with a judgment, the matter may be referred to the United Nations Security Council, which can make recommendations or decide upon measures to enforce the judgment.

VII. Conclusion

ITLOS is a critical institution in the development and enforcement of the law of the sea, providing a forum for the peaceful settlement of disputes under UNCLOS. Its jurisprudence has significantly contributed to the interpretation of key principles such as freedom of navigation, maritime boundary delimitation, and environmental protection. As disputes over marine resources, boundary claims, and navigation rights continue to arise, ITLOS remains central to maintaining order and promoting the rule of law in the world’s oceans.

Freedom of Navigation | Law of the Sea | PUBLIC INTERNATIONAL LAW

Freedom of Navigation under Public International Law and the Law of the Sea

Freedom of navigation is a fundamental principle enshrined in international maritime law, particularly under the United Nations Convention on the Law of the Sea (UNCLOS). This principle is vital for the regulation of global maritime trade, security, and cooperation. Below is a meticulous exploration of the Freedom of Navigation under the context of Public International Law and the Law of the Sea.

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I. Legal Basis for Freedom of Navigation

1. UNCLOS (United Nations Convention on the Law of the Sea)

   • UNCLOS is the primary international treaty that governs the law of the sea, including the rights and duties of states concerning navigation, resource use, and maritime zones.
   • Article 87 of UNCLOS explicitly provides for the freedom of navigation as a component of the "freedom of the high seas."
   • This freedom is available to all states, coastal or land-locked, and includes:
     1. Freedom of navigation
     2. Freedom of overflight
     3. Freedom to lay submarine cables and pipelines
     4. Freedom to construct artificial islands
     5. Freedom of fishing
     6. Freedom of scientific research

2. Customary International Law

   • Even prior to the codification of UNCLOS, freedom of navigation was recognized as a customary international law principle, deeply rooted in state practice and opinio juris.
   • Maritime nations, both historically and in contemporary practice, have upheld the right of ships flying any state's flag to freely traverse the high seas without unjustifiable interference by other states.

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II. Scope and Limitations

1. Freedom of Navigation in Different Maritime Zones

   • The right to freedom of navigation applies differently in various maritime zones recognized by UNCLOS:
     1. Territorial Sea (up to 12 nautical miles from the baseline)
        • Coastal states have sovereignty over their territorial sea, but this sovereignty is limited by the right of innocent passage for foreign vessels. Innocent passage (UNCLOS Articles 17-32) must be continuous, expeditious, and not prejudicial to the peace, good order, or security of the coastal state.
     2. Contiguous Zone (up to 24 nautical miles)
        • In this zone, the coastal state may exercise limited control to prevent or punish violations of its customs, fiscal, immigration, or sanitary laws, but the principle of freedom of navigation remains intact.
     3. Exclusive Economic Zone (EEZ, up to 200 nautical miles)
        • The coastal state has sovereign rights over natural resources in the EEZ, but other states enjoy the freedom of navigation, overflight, and the laying of submarine cables and pipelines (Article 58).
     4. High Seas (beyond 200 nautical miles)
        • Freedom of navigation on the high seas is virtually unrestricted, except for specific prohibitions (e.g., piracy, slavery, illicit trafficking).
     5. Archipelagic Waters
        • Archipelagic states (e.g., the Philippines) are allowed to regulate navigation within their archipelagic waters, but must respect the right of archipelagic sea lanes passage, which permits continuous and expeditious navigation through routes designated by the archipelagic state.

2. Innocent Passage vs. Freedom of Navigation

   • In territorial seas, foreign ships enjoy the right of innocent passage, which requires that navigation be non-threatening and not involve activities such as weapons exercises, espionage, or pollution.
   • On the high seas and EEZ, however, freedom of navigation is broader, allowing for uninterrupted movement as long as it does not infringe upon other lawful uses or threaten public order.

3. Limitations to Freedom of Navigation

   • While UNCLOS affirms the freedom of navigation, it also recognizes legitimate restrictions imposed by international law or treaties:
     • Environmental Protection: Coastal states may adopt laws and regulations concerning pollution from ships within their territorial waters (Article 21).
     • Security: Coastal states can enact laws in the territorial sea for matters of defense, security, and public order (Articles 19-25).
     • Piracy and Unlawful Activities: States may exercise jurisdiction over vessels engaging in piracy, human trafficking, and unauthorized broadcasting on the high seas (Articles 100-107).

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III. Key Jurisprudence and State Practice

1. Military Activities and Freedom of Navigation

   • Some states, such as the United States, assert that military activities, including naval maneuvers and surveillance, are permitted as part of freedom of navigation in the EEZ. This view has been contested by certain coastal states, notably China, which claims that foreign military activities in the EEZ are inconsistent with its sovereign rights over natural resources.
   • International tribunals and legal scholars generally support the view that military navigation, when non-threatening and non-prejudicial to the coastal state's rights, is protected under the principle of freedom of navigation in the EEZ.
   • Freedom of Navigation Operations (FONOPs): The United States conducts FONOPs to challenge what it perceives as excessive maritime claims by states that undermine navigational freedoms guaranteed under international law.

2. South China Sea Dispute

   • The dispute over freedom of navigation in the South China Sea, particularly concerning the overlapping claims of China and the Philippines, among others, has been a focal point of international concern.
   • In the 2016 Arbitral Award (Philippines v. China), the tribunal upheld the principle of freedom of navigation, declaring that China’s extensive claims based on the "nine-dash line" have no legal basis under UNCLOS. It emphasized that states cannot interfere with the lawful use of EEZs and high seas for navigation and other purposes.

3. International Case Law

   • Corfu Channel Case (1949): This early International Court of Justice (ICJ) case underscored the importance of freedom of navigation and found Albania liable for damages after its waters posed a threat to international shipping.
   • Nicaragua v. United States (1986): The ICJ ruled that the mining of Nicaraguan harbors by the United States violated Nicaragua's sovereignty and breached its right to innocent passage.

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IV. Philippine Perspective on Freedom of Navigation

1. Geopolitical Context

   • As an archipelagic state, the Philippines has a strategic interest in both maintaining the security of its waters and ensuring the free flow of maritime trade and navigation, particularly in the South China Sea.
   • The Philippines has consistently affirmed its commitment to freedom of navigation, as evidenced by its reliance on UNCLOS mechanisms to resolve territorial and maritime disputes, especially through its engagement in the 2016 Arbitral Award.
   • The Philippine Navy and Coast Guard work to enforce maritime laws and protect navigational freedoms, particularly in disputed areas like the West Philippine Sea.

2. Challenges

   • The Philippines faces significant challenges in enforcing freedom of navigation due to competing maritime claims in the South China Sea, particularly from China. In response, the Philippines has relied on diplomatic and legal avenues, in coordination with international allies, to safeguard its navigational rights and maritime claims.

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V. Conclusion

Freedom of navigation is a cornerstone of the Law of the Sea and international maritime law. It ensures that vessels of all states can traverse maritime zones, from territorial seas to the high seas, subject to certain limitations that protect the sovereignty, security, and environmental interests of coastal states. For the Philippines, as both a coastal and archipelagic nation, freedom of navigation is crucial not only for economic security but also for maintaining stability in contested waters like the South China Sea. The continuous observance and defense of this principle are vital to upholding international order and maritime cooperation.

Maritime and Territorial Disputes | Law of the Sea | PUBLIC INTERNATIONAL LAW

XVI. Public International Law

N. Law of the Sea

3. Maritime and Territorial Disputes

Maritime and territorial disputes are a significant aspect of international law, particularly under the framework of the United Nations Convention on the Law of the Sea (UNCLOS). These disputes typically arise over claims to maritime zones such as territorial seas, exclusive economic zones (EEZ), and continental shelves. Here, we analyze the key legal concepts, principles, and case precedents that govern these disputes, especially in the context of the Law of the Sea.

1. Key Concepts in the Law of the Sea

A. Maritime Zones

1. Territorial Sea:

   • Extends up to 12 nautical miles from the baseline of a coastal state.
   • The coastal state exercises sovereignty over the territorial sea, including its airspace and seabed, but subject to the right of innocent passage by foreign vessels.
   • Disputes often arise over the delimitation of territorial seas when adjacent or opposite states claim overlapping territorial waters.

2. Exclusive Economic Zone (EEZ):

   • Extends up to 200 nautical miles from the baseline.
   • The coastal state has sovereign rights over natural resources (fishing, oil, gas) and jurisdiction over environmental protection, scientific research, and the construction of artificial islands.
   • The high seas beyond the EEZ remain open to all states for navigation, overflight, and laying submarine cables.

3. Continental Shelf:

   • Extends up to 200 nautical miles or beyond if the natural extension of the continental margin extends farther.
   • The coastal state has the right to exploit the seabed and subsoil, particularly for mineral and petroleum resources.

4. High Seas:

   • Areas of the ocean that are beyond any national jurisdiction, open to all states for navigation, fishing, and resource exploitation subject to international regulation.

B. Baselines

• Baselines are the starting point for measuring the breadth of maritime zones. Typically, they follow the low-water mark along the coast, but in cases of indented coastlines, archipelagic states, or islands, special methods like straight baselines may be employed.
• Archipelagic baselines, as recognized under UNCLOS, are drawn around the outermost points of an archipelago, connecting islands and waters into a single territorial unit.

C. Delimitation Principles

• When maritime zones overlap between neighboring states, delimitation must occur to determine boundaries.
• UNCLOS prescribes that delimitation should be achieved by agreement based on equity, taking into account geographical and other relevant circumstances.
• If an agreement cannot be reached, the dispute may be submitted to arbitration or adjudication by international bodies such as the International Court of Justice (ICJ) or the International Tribunal for the Law of the Sea (ITLOS).

2. Resolution of Maritime Disputes under UNCLOS

UNCLOS provides a dispute settlement framework to resolve conflicts related to maritime zones. This includes mechanisms for peaceful settlement such as negotiation, mediation, conciliation, and judicial settlement. The two primary judicial bodies for resolving disputes are:

A. International Court of Justice (ICJ)

• The ICJ has handled several cases involving maritime boundaries and territorial disputes, such as the North Sea Continental Shelf cases and the Nicaragua v. Colombia case.
• The ICJ bases its decisions on legal principles like equity, proportionality, and the application of customary international law.

B. International Tribunal for the Law of the Sea (ITLOS)

• ITLOS, established under UNCLOS, is dedicated to resolving disputes specifically related to the Law of the Sea.
• Its jurisdiction covers disputes regarding the interpretation or application of UNCLOS, and it has handled cases like the Bangladesh v. Myanmar case concerning delimitation of the EEZ and continental shelf.

C. Arbitral Tribunals

• UNCLOS also allows for arbitration, as seen in the South China Sea Arbitration (Philippines v. China), where the arbitral tribunal issued a landmark ruling in favor of the Philippines, invalidating China’s "nine-dash line" claim. However, China rejected the ruling, leading to ongoing tensions.

3. Maritime and Territorial Disputes Involving the Philippines

The Philippines is at the center of several key maritime disputes, most notably in the West Philippine Sea (part of the South China Sea). These disputes involve overlapping claims with China, Vietnam, Malaysia, Brunei, and Taiwan over islands, reefs, and maritime zones.

A. South China Sea Dispute

• The South China Sea is a highly contested area with overlapping claims primarily between China and several Southeast Asian countries, including the Philippines.
• China asserts historic rights over almost the entire South China Sea based on its "nine-dash line" map, which UNCLOS does not recognize. This claim overlaps with the Philippines’ EEZ, particularly around the Spratly Islands and Scarborough Shoal.
• In 2013, the Philippines initiated arbitration under Annex VII of UNCLOS, resulting in the 2016 South China Sea Arbitral Tribunal ruling.

1. 2016 Arbitral Tribunal Ruling (Philippines v. China)

• Key Findings:
  • China's claim of historic rights within the "nine-dash line" was invalid under UNCLOS.
  • Scarborough Shoal is a traditional fishing ground for several nations, and China’s interference with Philippine fishing activities violated UNCLOS.
  • Certain features in the Spratly Islands (such as Mischief Reef and Subi Reef) were classified as low-tide elevations, meaning they cannot generate an EEZ or territorial sea.
  • China's construction of artificial islands and its interference with Philippine oil exploration within the latter's EEZ was unlawful.
• Legal Implications:
  • The ruling clarified that maritime entitlements must be based on UNCLOS principles rather than historical claims.
  • The decision reinforced the EEZ rights of coastal states and restricted the rights of states to exploit areas beyond their lawful jurisdiction.

Despite the ruling, China has refused to recognize the decision, and tensions remain in the region. The Philippines has pursued diplomatic negotiations, balancing enforcement of the ruling with broader foreign policy interests.

B. Territorial Disputes: Sabah

• Another territorial dispute involving the Philippines is the claim over the territory of Sabah, which is part of Malaysia.
• The Philippine claim is based on historical titles rooted in the 1878 lease agreement between the Sultanate of Sulu and the British North Borneo Company.
• Malaysia has administered Sabah since its formation in 1963, and the dispute remains unresolved despite periodic diplomatic exchanges.

4. Principles Governing Territorial Disputes

A. Uti Possidetis Juris

• This principle maintains that newly formed states should inherit the pre-independence administrative boundaries, helping to prevent conflicts after decolonization.
• In Southeast Asia, the principle of uti possidetis juris has less direct application but underpins territorial arrangements following the dissolution of colonial empires.

B. Effectivités

• The principle of effectivités involves the actual exercise of state authority over a territory. In territorial disputes, a state may claim sovereignty if it demonstrates effective control, such as administrative actions, infrastructure, and enforcement of laws.
• In the South China Sea, the principle has been argued by various claimants, but the South China Sea Arbitration emphasized that mere occupation or artificial construction does not constitute lawful sovereignty over maritime features.

5. Customary International Law and Judicial Precedents

Customary international law plays a crucial role in resolving disputes not expressly covered by UNCLOS or other treaties. Judicial decisions from the ICJ, ITLOS, and arbitral tribunals shape the application of these customary norms in maritime delimitation and territorial claims.

A. Equity and Proportionality

• In maritime delimitation cases, courts strive to achieve an equitable solution, ensuring that delimitation respects the geographical context, proportionality of coastal lengths, and the presence of any relevant circumstances (such as economic reliance on the disputed zone).

B. Relevant Judicial Cases

• North Sea Continental Shelf Cases (ICJ, 1969): Established the principles of equity and proportionality in maritime delimitation.
• Maritime Delimitation in the Caribbean Sea and Pacific Ocean (Costa Rica v. Nicaragua, ICJ, 2018): Demonstrated the importance of geographical features in determining the fairness of maritime boundaries.
• Guyana v. Suriname (2007): Arbitral award applying equity in resolving an overlapping EEZ and continental shelf dispute.

Conclusion

Maritime and territorial disputes in the context of public international law and the Law of the Sea are governed by a complex set of legal principles established by UNCLOS, customary international law, and judicial precedents. Key concepts like maritime zones, baselines, and delimitation principles serve as the foundation for resolving such disputes. In Southeast Asia, the Philippines faces critical challenges related to the South China Sea and Sabah, requiring careful navigation of international legal frameworks and diplomatic strategies.